Letting a Child Be Who She Is
When Leslie Swanson* sought custody of her 4-year-old grandchild a few years ago, her lawyer’s advice about whether to disclose to the family court judge that the child is transgender wasn’t very reassuring.
“The first attorney was telling us to hide Catherine’s* gender identity, to not tell anyone, that it would negatively affect our case, and that we would be blamed for Catherine being transgender,” recalls Leslie, who lives in Massachusetts.
But hiding Catherine’s gender identity just wasn’t an option. Though she was born male, Catherine has identified as a girl since she was a toddler – from the time she proclaimed “I’m a girl,” at age 2. After that, she repeatedly corrected anyone who referred to her as a boy, with a persistence that caused her grandmother – who previously thought her grandchild was simply pretending – to take notice. “I thought, that’s got to be tough,” Leslie recalls. She started buying Catherine girl-identified clothing, including a bathing suit. “She wore it every day for two weeks,” says Leslie.
“We had a child who, though identified as a male at birth, was a girl. There was no way we could or would keep her from letting other people know who she is,” says Leslie. “The first attorney we contacted didn’t understand that.”
The guardian ad litem, (GAL) the person appointed by the court to evaluate Catherine’s interests in the proceedings, also displayed little understanding of transgender issues. She filed a report with the court in which she characterized Catherine as “gender neutral,” and repeatedly referred to her as “he/she” or by both her male name, which Catherine had rejected, and her female name. More concerning, the GAL recommended that Leslie and her son — Catherine’s father — share legal custody with Catherine’s mother, who refused to acknowledge Catherine’s gender identity. As the case went on, it became clear that few in the legal system knew much, or anything, regarding transgender people’s lives beyond the myths or stereotypes they may have heard or seen in the media.
Transgender people often have unique needs and vulnerabilities in the family law context. As a result, they require effective and culturally competent representation to protect themselves and their families. GLAD’s Transgender Rights Project (TRP) aims to equip family law attorneys who want to more effectively advocate for their transgender clients with resources and practical guidance available in the new book Transgender Family Law: A Guide to Effective Advocacy.
Had Leslie been able to hand such a book over to her lawyer and Catherine’s GAL, the custody proceedings might have gone more smoothly and Catherine’s interests would have been apparent sooner. Instead, Leslie shared her concerns about her legal representation with GLAD’s Transgender Rights Project Director, Jennifer Levi, who referred her to Elizabeth Roberts, an attorney at Todd & Weld and an active member of the Massachusetts LGBTQ Bar Association. Elizabeth immediately understood what was at stake. “Elizabeth said, ‘This case is about protecting a transgender child — that’s the crux,’” Leslie says. “She understood that for a kid like Catherine, there are huge safety issues, safety and well-being — meaning physical and psychological.”
With guidance from the Transgender Rights Project along the way, Elizabeth negotiated a final agreement with which her clients are very satisfied.
About a year ago, they went before the same family court judge who presided over the custody hearing when Catherine legally changed her name to reflect her lived gender. Though they ultimately decided not to disclose Catherine’s transgender status to the judge during the custody proceedings – not because they were fearful, but because they just didn’t know how to broach the issue with him, says Leslie – they couldn’t avoid it for the name change petition. Lisa Cukier, who represented Catherine, drafted a pre-trial memo for the judge that laid out in great detail Catherine’s gender history and the challenges to her safety and privacy because her legal name was male-identified. “It was beautifully written,” says Leslie, noting that the judge opened the proceedings by letting everyone know he had read the memo. “And I knew at that moment he understood,” she says. “Elizabeth and I looked at each other like, ‘He gets it.’ We didn’t talk about it during the custody hearing, so this was the first coming out with him.”
Though Catherine had the support of her father, Leslie, and her grandfather, her mother still opposed the legal name change. Nonetheless, the judge stated he was inclined to take the matter to trial that day and that he also favored the name change, which he ultimately granted.
Catherine, who is now 7, is thriving in her grandmother’s care. Her father is active in her life and she sees her mother regularly. “She is a brilliant child and I’m not saying that just because I’m biased, which I am,” says Leslie. “She’s really brilliant and a natural leader. Catherine is going to be our first transgender president. I promise you.”
In the meantime, Leslie hopes that education about transgender people and their issues, legal and otherwise will be incorporated into the legal system. “I think there needs to be education across the board. The judges need to be educated,” Leslie asserts, as do law students planning careers in family or juvenile law. “We need to make a cultural shift, so that [being transgender] is not a negative stigma. It’s just who a person is.”
*Names have been changed